2010 No. 2228
Food, England

The Contaminants in Food (England) Regulations 2010

Made
Laid before Parliament
Coming into force
The Secretary of State makes the following Regulations in exercise of the powers conferred by sections 16(1)(a), (e) and (f), 17(2), 26(1)(a) and (3), and 48(1) of the Food Safety Act 19901, and now vested in him2, as read with paragraph 1A of Schedule 2 to the European Communities Act 19723.

These Regulations make provision for a purpose mentioned in section 2(2) of the European Communities Act 1972 and it appears to the Secretary of State that it is expedient for references to the Annex to the EU instrument specified in regulation 2(3) to be construed as references to that Annex as it may be amended from time to time.

In accordance with section 48(4A) of the Food Safety Act 1990, he has had regard to relevant advice given by the Food Standards Agency.

As required by Article 9 of Regulation (EC) No. 178/2002 of the European Parliament and of the Council laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety4, there has been open and transparent public consultation during the preparation and evaluation of these Regulations.

Title, application and commencement1.

These Regulations may be cited as the Contaminants in Food (England) Regulations 2010, apply in relation to England only and come into force on 20th October 2010.

Interpretation2.

(1)

In these Regulations —

“the Act” means the Food Safety Act 1990;

“authorised officer” means any person who is authorised in writing, either generally or specifically, by a food authority or as the case may be a port health authority to act in matters arising under these Regulations;

“Commission Regulation 1881/2006” means Commission Regulation (EC) No. 1881/2006 setting maximum levels for certain contaminants in foodstuffs5;
“Commission Regulation 629/2008” means Commission Regulation (EC) No. 629/2008 amending Regulation (EC) No 1881/2006 setting maximum levels for certain contaminants in foodstuffs6;
“Commission Regulation 124/2009” means Commission Regulation (EC) No. 124/2009 setting maximum levels for the presence of coccidiostats or histomonostats in food resulting from the unavoidable carry-over of these substances in non-target feed7;
“Commission Regulation 165/2010” means Commission Regulation (EU) No. 165/2010 amending Regulation (EC) No. 1881/2006 setting maximum levels for certain contaminants in foodstuffs as regards aflatoxins8;

“food authority” does not include the appropriate Treasurer referred to in section 5(1)(c) of the Act (which deals with the Inner Temple and the Middle Temple) nor a port health authority;

“port health authority” means —

(a)

in relation to the London port health district (within the meaning given to that phrase for the purposes of the Public Health (Control of Disease) Act 19849 by section 7(1) of that Act), the Common Council of the City of London; and

(b)

in relation to any port health district constituted by order under section 2(3) of the Public Health (Control of Disease) Act 1984, a port health authority for that district constituted by order under section 2(4) of that Act.

(2)

Any other expression used in these Regulations and in Commission Regulation 1881/2006 or in Commission Regulation 124/2009 has the same meaning in these Regulations as it bears in the Commission Regulation concerned.

(3)

Any reference to “the Annex” is a reference to the Annex to Commission Regulation 1881/2006 as that Annex may be amended from time to time, and any reference to that Regulation is to be construed accordingly.

Offences and penalties3.

(1)

Subject to the transitional arrangements contained in –

(a)

Article 11 of Commission Regulation 1881/2006;

(b)

Article 2 of Commission Regulation 629/2008; or

(c)

Article 2 of Commission Regulation 165/2010,

a person who contravenes or fails to comply with any of the EU provisions specified in paragraph (2) is guilty of an offence.

(2)

The EU provisions are —

(a)

Article 1(1) of Commission Regulation 1881/2006 (prohibition on the placing on the market of foodstuffs containing contaminants in excess of prescribed limits contained in the Annex), as read with the Annex and, in the case of groundnuts, other oilseeds, tree nuts, dried fruit, rice and maize, with Article 4;

(b)

Article 3 of Commission Regulation 1881/2006 (prohibitions on use, mixing and detoxification); and

(c)

Article 1(1) of Commission Regulation 124/2009 (prohibitions on marketing or mixing foods containing coccidiostats or histomonstats at levels in excess of prescribed limits).

(3)

Anyone convicted of an offence under paragraph (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Enforcement and competent authorities4.

(1)

It is the duty of each food authority within its area and each port health authority within its district to execute and enforce these Regulations, Commission Regulation 1881/2006 and Commission Regulation 124/2009.

(2)

The competent authority for the purposes of —

(a)

Article 2(2) of Commission Regulation 1881/2006 (justification by food business operators of concentration or dilution factors); and

(b)

Article 1(1) of Commission Regulation 124/2009 (relating to the duty to investigate the reasons for the contamination),

is the authority having the duty to enforce under paragraph (1).

Application of various sections of the Food Safety Act 19905.

(1)

The following provisions of the Act apply for the purposes of these Regulations with the modification that any reference in those provisions to the Act or Part of it is to be construed as a reference to these Regulations —

(a)

section 3 (presumptions that food intended for human consumption);

(b)

section 20 (offences due to fault of another person);

(c)

section 21 (defence of due diligence)10 with the modification that—

(i)

subsections (2) to (4) shall apply in relation to an offence under regulation 3 as they apply in relation to an offence under section 14 or 15, and

(ii)

in subsection (4) the references to “sale” are deemed to include references to “placing on the market”;

(d)

section 30(8) (which relates to documentary evidence);

(e)

section 33(1) (obstruction etc. of officers);

(f)

section 33(2), with the modification that the reference to “any such requirement as is mentioned in subsection (1)(b) above” shall be deemed to be a reference to any such requirement as is mentioned in section 33(1)(b) as applied by sub–paragraph (e);

(g)

section 35(1) (punishment of offences)11, in so far as it relates to offences under section 33(1) as applied by sub–paragraph (e);

(h)

section 35(2) and (3)12, in so far as it relates to offences under section 33(2) as applied by sub–paragraph (f);

(i)

section 36 (offences by bodies corporate);

(j)

section 36A (offences by Scottish partnerships)13; and

(k)

section 44 (protection of officers acting in good faith).

(2)

Subject to paragraph (3), section 9 of the Act (inspection and seizure of suspected food) applies for the purposes of these Regulations as if it read as follows —

“9.

(1)

An authorised officer of a food authority may at all reasonable times inspect any food intended for human consumption which has been placed on the market and subsections (2) to (7) below shall apply where, on such an inspection, it appears to the authorised officer that the placing on the market of any food fails to comply with the requirements specified in regulation 3(2)(a) and (c) of the Contaminants in Food (England) Regulations 2010, (“the EU requirements”).

(2)

The authorised officer may either —

(a)

give notice to the person in charge of the food that, until the notice is withdrawn, the food or any specified portion of it —

(i)

is not to be used for human consumption, and

(ii)

either is not to be removed or is to be removed to a place at which there are facilities to carry out sampling in the manner required by law; or

(b)

seize the food and remove it in order to have it dealt with by a justice of the peace.

(3)

Where the authorised officer exercises the power conferred by subsection (2)(a) above, that officer shall, as soon as is reasonably practicable and in any event within 21 days, determine whether or not the food complies with the EU requirements and —

(a)

if satisfied that it does comply, shall forthwith withdraw the notice;

(b)

if not so satisfied, shall seize the food and remove it in order to have it dealt with by a justice of the peace.

(4)

Where an authorised officer exercises the powers conferred by subsection (2)(b) or (3)(b) above, the officer shall inform the person in charge of the food of the intention to have it dealt with by a justice of the peace and —

(a)

any person who in connection with regulation 3(2)(a) or (c) of the above Regulations might be liable to a prosecution in respect of the food shall, if that person attends before the justice of the peace by whom the food falls to be dealt with, be entitled to be heard and to call witnesses; and

(b)

that justice of the peace may, but need not, be a member of the court before which any person is proceeded against for an offence in connection with regulation 3(2)(a) or (c) of the above Regulations in relation to that food.

(5)

If it appears to a justice of the peace, on the basis of such evidence as the justice considers appropriate in the circumstances, that any food falling to be dealt with under this section fails to comply with the EU requirements the justice shall condemn the food and order —

(a)

the food to be destroyed or to be so disposed of as to prevent it from being used for human consumption; and

(b)

any expenses reasonably incurred in connection with the destruction or disposal to be defrayed by the owner of the food.

(6)

If a notice under subsection (2)(a) above is withdrawn, or the justice of the peace by whom any food falls to be dealt with under this section refuses to condemn it, the food authority shall compensate the owner of the food for any depreciation in its value resulting from the action taken by the authorised officer.

(7)

Any disputed question as to the right to or the amount of any compensation payable under subsection (6) above shall be determined by arbitration.

(8)

Any person who knowingly contravenes the requirements of a notice under subsection (2)(a) above shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.”.

(3)

The expressions “authorised officer” and “food authority” which are used in section 9 of the Act so far as it applies for the purposes of these Regulations by virtue of paragraph (2), shall, for those purposes, bear the meanings that those expressions respectively bear in these Regulations.

Consequential amendment6.

In Schedule 1 to the Food Safety (Sampling and Qualifications) Regulations 199014 (provisions to which those Regulations do not apply) in so far as they apply in relation to England, for the entry relating to the Contaminants in Food (England) Regulations 200915 there is substituted the following entry —

“The Contaminants in Food (England) Regulations 2010 (to the extent that a sample falls to be prepared and analysed in accordance with Commission Regulation 1881/2006 as that expression is defined in those Regulations)

S.I. 2010/2228.”

Revocations7.

The Contaminants in Food (England) Regulations 2009 are revoked.

Signed by authority of the Secretary of State for Health

Anne Milton
Parliamentary Under Secretary of State,
Department of Health
EXPLANATORY NOTE
(This note is not part of the Regulations)
1.

These Regulations, which apply in relation to England only, revoke and re-enact with changes the Contaminants in Food (England) Regulations 2009 (S.I. 2009/1223). They make provision for the continuing execution and enforcement of Commission Regulation (EC) No. 1881/2006 setting maximum levels for contaminants in foodstuffs (OJ No. L364, 20.12.2006, p.5) (“the Commission Regulation”).

2.

The Commission Regulation, which replaced amendments the provisions formerly contained in Commission Regulation (EC) No. 466/2001, has recently been amended by Commission Regulation (EU) No. 165/2010 which concerns maximum levels for aflatoxins and the treatment of certain foods found to contain aflatoxins in excess of those levels (OJ No. L50, 27.2.2010, p.8). The Commission Regulation has previously been amended by —

(a)

Commission Regulation (EC) No. 1126/2007 (OJ No. L255, 29.9.2007, p.14), concerning maximum permitted levels for Fusarium toxins in maize and maize products;

(b)

Commission Regulation (EC) No. 565/2008 (OJ No. L160, 19.6.2008, p.20), concerning maximum permitted levels for dioxins and PCBs in fish liver;

(c)

Commission Regulation (EC) No. 629/2008 (OJ No. L173, 3.7.2008, p.6), concerning maximum permitted levels for certain heavy metals; and

(d)

Commission Regulation (EU) No. 105/2010 (OJ No. L35, 6.2.2010, p.7), concerning maximum permitted levels for ochratoxin A.

3.

These Regulations also provide for the execution and enforcement of Commission Regulation (EC) No. 124/2009 (OJ No. L40, 11.2.2009, p.7) (“Regulation 124/2009”), which concerns maximum permitted levels for certain feed additives that may, in specified circumstances, occur in food.

4.

The Regulations —

(a)

provide that it is an offence, (except in certain cases relating to food placed on the market before a date given in specified EU legislation) —

(i)

to place on the market certain foods if they contain contaminants of any kind specified in the Commission Regulation or in Regulation 124/2009 at levels exceeding those specified,

(ii)

to use food containing contaminants at levels in excess of those permitted by the Commission Regulation as ingredients in the production of certain foods,

(iii)

to mix foods that do not comply with the maximum levels prescribed by the Commission Regulation or Regulation 124/2009 with foods which do comply,

(iv)

to mix foods to which the Commission Regulation relates and which are intended for direct consumption or as food ingredients with foods to which the Commission Regulation relates and which are intended to be sorted or otherwise treated prior to consumption, or

(v)

to detoxify by chemical treatment food containing mycotoxins in excess of the limits specified in the Commission Regulation (regulation 3);

(b)

specify the enforcement authorities (regulation 4);

(c)

provide for the application of specified provisions of the Food Safety Act 1990 for the purposes of these Regulations (regulation 5);

(d)

make a consequential amendment to the Food Safety (Sampling and Qualifications) Regulations 1990 in so far as they apply in relation to England (regulation 6), the effect being to disapply the sampling and analysis provisions of those Regulations only to the extent that those matters are regulated by the EU instruments mentioned in paragraph 5(a) to (d).

5.

The Commission Regulation specifies the European Union methods of sampling and analysis that are required to be used for the official control of levels of the substances covered by it. Those methods are set out in —

(a)

Commission Regulation (EC) No. 401/2006 laying down the methods of sampling and analysis for the official control of the levels of mycotoxins in foodstuffs (OJ No. L70, 9.3.2006, p.12), as amended by Commission Regulation (EU) No 178/2010 (OJ No. L52, 3.3.2010, p.32);

(b)

Commission Regulation (EC) No. 1882/2006 laying down methods of sampling and analysis for the official control of levels of nitrates in certain foodstuffs (OJ No. L364, 20.12.2006, p.25);

(c)

Commission Regulation (EC) No. 1883/2006 laying down methods of sampling and analysis for the official control of levels of dioxins and dioxin-like PCBs in certain foodstuffs (OJ No. L364, 20.12.2006, p.32);

(d)

Commission Regulation (EC) No.333/2007 laying down the methods of sampling and analysis for the official control of the levels of lead, cadmium, mercury, inorganic tin, 3-MCPD and benzo(a)pyrene in foodstuffs (OJ No. L88, 29.3.2007, p29).

6.

A full impact assessment of the effect that this instrument will have on the costs of business and the voluntary sector is available from the Food Safety Group of the Food Standards Agency, Aviation House, 125 Kingsway, London WC2B 6NH and is annexed to the Explanatory Memorandum which is available alongside the instrument on the OPSI website